Going to Trial: It’s Often Necessary, But It’s Not for the Faint of Heart
By Laurel Champion and Ronald Rossi
Lawyers who actually try cases enjoy the combat of trial, whether it be trial by jury, before a judge, or binding arbitration. We often have to remind ourselves, though, that our clients’ experience of the trial process is much different than ours.
Litigation has a lot in common with battle situations. When it starts, everyone is pumped up and thinks a victory will be achieved quickly assuming there won’t be very severe financial or personal consequences. Unfortunately, this is often not the case. When Ron started practicing law in 1971, lawyers could meet, confer, and resolve cases fairly quickly; however, as the number of lawyers has grown exponentially in California, this is becoming more and more difficult. Some people use the litigation process to bully others and beat them into submission. Some law firms do not have enough work and will push cases that should simply settle. Some businesses just want to delay the inevitable by tying up assets in the courts for years. All of these factors and many more can wreak emotional havoc on the client.
One of our clients reminded us recently of a scientific paper on the prescribing of pain medication by a surgeon. It turns out that surgeons who had undergone surgery themselves prescribed their own patients twice as much pain medication as those who had never had gone through surgery themselves. Not all trial lawyers have been through a trial as a plaintiff or defendant, so we need to remember that a lawsuit is often painful as well as stressful for our clients.
People file lawsuits because they believe they have been wronged and they want whoever injured them to remedy this situation. Anger, a sense of unfairness, a desire to make the other person “pay” – these emotions often motivate legal action. The person who is sued often reacts with similar strong emotions – they feel outraged, humiliated, and anxious, and they often believe the lawsuit is unwarranted and amounts to an attack on their character and a threat to their stability and security.
Once a case starts, it has a life of its own that affects the lives of all the people involved. A lawsuit is extremely time-consuming. The parties have to spend time gathering information, looking for documents, remembering and describing past events accurately and in detail, talking with witnesses, meeting with their lawyers, giving deposition and trial testimony, and so on. All of this interrupts work schedules and family and personal time and is rarely convenient for a client.
Parties to litigation often feel frustrated and helpless because the lawsuit is largely out of their control – they have to respond to whatever the adverse party and their lawyers do, no matter how unreasonable or burdensome the demands. We often witness people break down and cry in depositions from the stress. Ron even witnessed one person suffer a heart attack during a deposition. In another bitter dispute, involving several family members, one brother physically attacked the other brother in our conference room during an arbitration.
People are sometimes afraid or unable to go about their normal lives because they are involved in a lawsuit. One client called and asked whether she dare buy a home for herself and her children because if she lost the lawsuit she was involved in, it might be taken away from her. One couple has been in litigation with a former friend for almost a decade. This individual got them into several bad business deals, and since 2011, they have been defending lawsuits. They used to enjoy overseas travel, but for the last five years they’ve refused to leave the United States, afraid they would miss a development in one of their cases.
It isn’t unusual for some people to let their lives be completely taken over by the litigation they are defending or prosecuting. People who used to have a zest for life and a wide range of activities and interests are now obsessed by their case. They spend their days analyzing the case from every angle and second-guess themselves and everyone involved, wondering if they are making the right decisions. They agonize for days before court hearings, can’t sleep, and are unable to let go. One otherwise calm, good-natured real estate broker calls every friend or acquaintance he knows and tells them every detail of the lawsuit, asks for their input, and then questions if his lawyer is handling the case properly. Some people don’t want their “day” in court; they want their “decade” in court.
While money can’t buy happiness, some clients can develop the attitude that “it’s more comfortable to cry in a BMW than on a bicycle” and neglect their health and emotional well-being, fixating instead on a potential pot of money at the end of a case that 12 jurors may – or may not – award them. Even clients who initiate an action often wish they could simply dismiss the case and get it out of their lives once they experience the true toll of litigation. It is hard to ascribe a value to the stress a lawsuit inflicts, and even harder to understand this at the outset when the parties are at heightened emotional states.
There are several lessons in these stories. As lawyers, we need to be sympathetic to the emotional trauma our clients experience and be ready to listen to their concerns. When necessary, we may need to help the client find professional assistance for surviving a lawsuit. We need to prepare our clients for what is often a long, stressful, emotional, and frequently costly road ahead.
Anyone considering filing a lawsuit should weigh the toll a lawsuit will take on all aspects of your life against the possible – never guaranteed – benefits before initiating an action. As we often tell our clients, sometimes going to court is the only way to resolve a dispute or right a wrong, but it is neither a quick nor a painless process. A good trial lawyer will stand by you and be the best and most sympathetic resource he or she can be, but we want you to go into the process well informed and as ready for legal combat as possible.